Sonny E. Ossom V. Nseobong Willie Osom & Anor (1993)

LawGlobal-Hub Lead Judgment Report

ABDULLAHI, J.C.A.

By originating summons, the 1st respondent as plaintiff instituted an action in the High Court of Akwa Ibom State at Uyo against four defendants namely; (1) The National Republican Convention; (2) Dr. Lambert Udo (Chairman, National Republican Convention, Akwa-Ibom State) (3) Sonny E. Osom (The present appellant); (4) National Electoral Commission praying for seven reliefs, which read as follows:-

“1. A declaration that the plaintiff was duly nominated in the 6th November, 1991 chairmanship primaries conducted by the 1st defendant in Ekpe Atai Local Government Area.

2. A declaration that the plaintiff is the rightful candidate to be put forward by the 1st defendantto the 1st defendant’s Ekpe Atai Local Government congress for ratification and to contest the 23rd November, 1991 chairmanship election in Ekpe Atai on the 1st defendant’s platform.
3. An injunction restraining the 1st and 2nd defendants from sponsoring or putting forward the 3rd defendant to the Local Government Congress for ratification as chairmanship candidate for the 1st defendant in the said election ..
4. An order compelling the 1st and 2nd defendants to put forward the name of the plaintiff for ratification by the Local Government Congress of the National Republican Convention, Ekpe Atai Chapter.
5. An injunction restraining the 1st and 2nd defendants from sponsoring or putting forward the 3rd defendant as the candidate of the 1st defendant for the 23rd November 1991, local government chairmanship election in Ekpe Atai Local Government area.
6. An injunction restraining the 3rd defendant from parading himself as 1st defendant’s chairmanship candidate for the 23rd November 1991 Local Government Chairmanship election in Ekpe Atai Local Government area.
7. An injunction restraining the 4th defendant from accepting the 3rd defendant as the 1st defendant’s candidate for the said election.

It is important to point out at this juncture that at a certain stage of hearing of one of the various motions before the lower court, reliefs number 3,4,5,6 & 7 above were struck out, thus leaving only reliefs number 1 &2 alive.

The facts of the case can easily be extracted from the paragraphs of the affidavit sworn to by the plaintiff in support of the originating summons filed by him, particularly paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, & 14. They read as follows:-

“2. That on the 6th November, 1991, I contested the primaries for the nomination of a candidate to contest for the 23rd November, 1991, Local Government election on the platform of the 1st defendant.

3. That I contested against the 3rd defendant.
4. That I was duly nominated or elected in the said election having scored 2,195 votes as against the 3rd defendant’s 1,898 votes. I exhibit hereto as Exhs. “A” and “A1” declaration of the Returning Officer Sunday J. Mbohoetor and the recorded result in respect thereof.
5. That the 1st and 2nd defendants thereafter set up a State Electoral Panel for the 1st defendant to give clearance or otherwise to candidates who contested the 6th November, 1991 nomination.
6. That the said panel cleared me to contest the 23d November, 1991, local government chairmanship election on the platform of the 1st defendant. Exhibited hereto as Exh “B” is a copy of the letter written to me in that respect which was accompanied by Exhs. “A” and A1″.
7. That the chapter chairman and secretary of the 1st defendant in Ekpe Atai sent my name to the Acting Electoral Officer of the 4th defendant in Ekpe Atai as the 1st defendant’s candidate. Attached hereto and marked Exhs. “C” and “C1″ are the letters of the chapter chairman and secretary and the 4th defendant’s memorandum on the matter.
8. That thereafter the 2nd defendant caused to be announced on the Akwa-Ibom Broadcasting Corporation Radio on the 20th day of November, 1991 that the 3rd defendant had been cleared and put forward to contest the said election on the platform of the 1st defendant.
9. That after the nomination on the 6th November, 1991, no local government ward congress was summoned by the 1st defendant’s chapter chairman for Ekpe Atai to ratify any nomination.
10. That I was not given opportunity to explain the charges, if any brought against me to cause my name not being put forward to contest the election.
11. That my nomination was open, fair and no objection was taken to my victory.
12. That I am entitled to the reliefs sought against the defendants.”

The documents mentioned in the affidavit also read as follows:”

EXHIBIT “A”

NATIONAL REPUBLICAN CONVENTION

N.R.C. Secretariat,

Oruk Anam L.G. Area,

Akwa Iborn State.

6th November, 1991

The Chairman,

State Electoral Panel

N.R.C. Secretariat,

Uyo, Akwa-Ibom State.

Dear Sir,

CHAIRMANSHIP NOMINATION PRIMARIES EKPE ATAI LOCAL GOVERNMENT AREA

I have the following report for your guidance. I was the Returning Officer of the said election. After distribution of materials to the Presiding Officers, I went round the wards to see how the primaries were conducted. The primaries were generally peaceful and there were no protests as at the end of the collation exercise.

I therefore, on behalf of the Electoral Panel as the Returning Officer empowered to announce the result in Ekpe Atai Local Government Area hereby submit to this Panel for confirmation, the results for Ekpe Atai as per attached result sheet being the true position of affairs in this Local Government Area.

Mr. Nseobong Willie Osom, is therefore declared the winner having won in (7) seven out of the (10) ten wards in Ekpe Alai Local Government Area with the plurality of 2,195 votes (two thousand one hundred and ninety-five) against Mr. Sonny E. Osom, who earned a total of 1,989 votes (one thousand nine hundred and eighty nine.

(Sgd.) SUNDAY J. MBOHOETOR

RETURNING OFFICER.”

“EXHIBIT “B”

NATIONAL REPUBLICAN CONVENTION

EKPE ATAI CHAPTER B

Local Govt. Party Secretariate,

Idiaba/Odod,

P.O. Box 43

Odot – Ekpe Alai L.G.A

Akwa-Ibom State.

19th November, 1991.

OUR REF: PP/N.R.C./EANol.l/81

Your Ref:

Mr. Nseobong Willie Osom

Ibedu Nsit

Eastern Nsit

Ekpe Alai Local Govt. Area

Uyo.

CLEARANCE TO CONTEST FOR THE CHAIRMANSHIP ELECTIONS IN EKPE ATAI ON THE 23RD NOVEMBER, 1991

The State Electoral Panel, chaired by Barrister Mfon Inam, has cleared you to contest the N.E.C., sponsored bye elections on the 23rd November, 1991, on the platform of our great party – National Republican Convention.

This is sequel to your success, at the party primaries conducted on the 6th November, 1991. This is in accordance to the report presented to the above panel, by the Local Government Area Returning Officer, for the said elections. (See attached copy for your records).

CONGRATULATIONS.

Yours sincerely,

(Sgd.) (Sgd.)

Prince Imeh Usenekong Henry Effiong Henry

Chapler Chairman Chapter Secretary.”

(Sgd.)

“EXHIBIT “C1″

NATIONAL REPUBLICAN CONVENTION

EKPE ATAI CHAPTER

Local Government Secretariat

Idiaba/Odot

P.O. Box 43

Odot – Ekpe Atai L.G.A.

Akwa-Ibom State.

19th November, 1991

Our Ref:

Your Ref:

The Electoral Officer, (Ag.)

National Electoral Commission

Odot – Ekpe Atai L.G.A.

Akwa-Ibom State.

Dear Madam,

RE: SUBMISSION OF LIST OF CANDIDATE SPONSORED BY OUR GREAT PARTY (N.R.C.) FOR THE 23RD NOVEMBER, 1991 BYE – ELECTIONS, MR NSEOBONG WILLIE OSOM Please find attached for your records, particulars of the democratically elected candidate at the party primaries, conducted on the 16th November, 1991 in Ekpe Alai Local Government Area, for the above elections.

We strongly regret any inconvenience caused to your office, for the late submission of his files, for the purpose of screening.

2. VICE CHAIRMAN

We would also like to confirm the nomination of Chief Donatus Udo Noah, his files are already in your custody.

Anticipating your co-operation in this regard.

Yours faithfully,

(Sgd.) (Sgd.)

Prince Imeh Usenekong Henry Effiong Henry

Chapter Chairman Chapter Secretary

cc:

The Electoral Commissioner

National Electoral Commission

Uruan Street

Uyo

Thro’ Ag. Electoral Officer

Ekpe Alai

Odot,”

After all that had been said and done, the 3rd defendant, hereinafter referred to as the appellant was tipped and presented as the candidate for the party for the chairmanship of the local government in question. He duly participated and contested the election and won.

The plaintiff hereinafter referred to as the respondent was infuriated and like a wounded lion rushed to the lower court with all sorts of motions, ex-parte, interim, interlocutory and so on. Some of the motions were filed a day or so before the election date, but were not moved until after the election was held and the appellant was already declared winner.

The first motion the respondent got through was an exparte motion, date 26/11/91, filed the same day, heard the same day and all in all seven prayers were granted by the lower court in the following fashion:-

“I hereby make the following orders:-

1. I hereby restrain, by an order of interim injunction, the 2nd defendant/respondent, their servants, agents, representatives in interest, privies and others howsoever from presenting the 1st defendant/respondent to the 3rd defendant/respondent as the duly elected candidate for Ekpe Atai Local Government Area under the National Republican Convention platform.
2. I hereby further make an order of interim injunction restraining the 3rd defendant/respondent, their servants, agents, privies, representatives or others howsoever from acting in any manner whatsoever on the name or names, if any forwarded to it by the 2nd defendant/respondent.
3. I hereby further make an order of interim injunction restraining the 3rd defendant/respondent, their servants, agents, privies or representative in interest or others howsoever from swearing in the 1st defendant/respondent as the duly elected candidate for the Chairmanship of Ekpe Alai Local Government Area of Akwa-Ibom State.
4. It is further hereby ordered that the plaintiff/applicant shall enter into or give an undertaking in damages verified by an affidavit to be filed in this court to pay to the defendants/respondents should the applicant lose out at the end of the day.
5. It is hereby further ordered that a motion on notice be filed and together with this motion ex parte, served on all the defendants/respondents on or before the 29th November, 1991.
6. It is further ordered that the orders herein decreed be served on the respondent forthwith.
7. It is hereby further ordered that all orders herein made shall endure and be subsisting till the motion on notice be heard and determined or till varied or discharged by this Court.

Case adjourned to 11/12/91 for the motion on notice to be taken.

(Sgd.)

J.J. Umoren

Judge.

26/11/91.”

As a result of these orders, the appellant was not sworn in together with other Local Government Chairmen on the day fixed of the swearing in ceremony, that was 3/12/91. Two separate motions on notice were also filed before the lower court. One was filed on 5/12/91 and the other was filed on 6/12/91. The one filed on 5/12/91 was praying for the following order:-

“(a) Discharging the order of interim injunction issued by this Court on 26th November, 1991 in favour of the plaintiff/respondent against the defendants and defendant/applicant on the ground that:-

(i) The cause of action being the primaries for the nomination of the candidate by the National Republican Convention (N.R.C.), a registered political party in Nigeria for the Ekpe Atai Local Government Chairmanship Bye-Election held on 23rd November, 1991 and this Court not having jurisdiction to entertain Suits arising from Political Party Primaries had no power to make the interim order.

(ii) The pending motion on notice filed in this suit by the plaintiff/respondent pursuant to interim order is an abuse of the court process.

(b) Striking out the suit on the ground that the cause of action being and, arising from a political party, National Republican Convention (N.R.C.) primaries in Ekpe Atai Local Government Area on 23/11/91, this Honourable Court lacks jurisdiction to entertain it having regard to the decision of the Supreme Court in Onuoho v. Okafor (1983) 2 SCNLR 244; (1983) F.N.L.R page 217 and of the Court of Appeal in Bolonwu v. Chinyelu (1991) 4 NWLR (Pt.183) page 30.

(c) And for any further order(s) as this Honourable Court may deem fit to make in the circumstances.”

The second one filed on 6/12/91 was seeking for an order that the suit be struck out or dismissed on any of the following grounds:-

“1. That as the claim of the plaintiff relates to indiscipline or malpractice among party members and/or irregularities in the internal affairs of a political party, such complaint is not justifiable in a court of law, or that the High Court of Justice has no jurisdiction to entertain the plaintiff’s claim.

2. That as the 3rd defendant/applicant has contested election on the platform of the N.R.C. and was duly declared the winner against a candidate presented by the S.D.P., the only way of challenging the said election is by way of a petition claiming an undue election or undue return.
3. That the High Court (as opposed to the Local Government Tribunal) has no original jurisdiction to entertain a claim relating to whether a person has been duly elected or duly returned.
4. That the plaintiff has not acted timeously and the action constitutes an abuse of the processes of the Court in that the acts sought to be restrained have already been done and completed – or that the action as presently constitute discloses no cause of action known to law or that the said action has been brought mala fide and in bad faith.

And for such further order or other orders as this Honourable Court may deem it fit to make.”

I think a more fuller picture of the situation will emerge if I reproduce some relevant paragraphs of the appellant’s affidavit in support of his motion on notice filed on 6/12/91. They are paragraphs 11, 12, 13, 14, 15 & 16 and they read as follows:-

“11. That I am not aware of any protest or appeal by the plaintiff to the Local Government or State Chapter of the party or to any other organ of the party against my nomination or sponsorship by the N.R.C.

12. That my party, the N.R.C. sponsored only one candidate i.e. myself and I was duly cleared by N.E.C. to contest.
13. That from the 6th November, when nominations were held through the 23rd of November when the actual elections were held to the 2nd of December 1991 when I was expected to be sworn in the plaintiff did not serve me with any Court processes.
14. That the plaintiff obtained the order of injunction on 26th November, 1991 after the nominations had been completed on 6th November, 1991 and the actual elections held on 23rd November, 1991 and my solicitors have advised and I verily believe them that the Court therefore had nothing to restrain.
15. That the Constitution of the N.R.C., a copy of which is attached as exhibit “B” is binding on all party members including me and the plaintiff and the said Constitution stipulates the modes for settling of disputes or redressing grievances.
16. That I have suffered enormous hardship, indignity and ridicule as a result of the order of injunction and my solicitors have advised and I verily believe them that considering the time of applying for the order and declarations the plaintiff has acted maliciously, in bad faith and in abuse of the processes of this Honourable Court.”

The motions were moved on 16/12/92 and reply concluded on 17/12/91 and ruling was reserved to 13/1/92.

In the reserved ruling, the learned trial Judge, J.J. Urnoren J., made some findings which irked the appellant to appeal against the ruling. Some of the findings are as follows:-

“I hold that the peculiar facts and circumstances of this case are different from those of Onuoha v. Okafor and are justiciable.”

Then toward the end of the ruling, the learned Judge said:-

“From the totality of the foregoing reasoning and authorities I feel extremely ill at ease to decline jurisdiction in the suit before me. I hold that I have jurisdiction to entertain it.

The application filed on 5/12/91 and 6/12/91 .are refused and are consequently hereby struck out. I make no order as to costs.”

The appellant was very unhappy with this ruling and he appealed to this Court on two grounds of appeal. They read as follows:-

“Error in Law

1. The learned trial Judge erred in law when he held that he had jurisdiction to entertain a suit relating or pertaining to disputes touching intra-party election primaries notwithstanding Supreme Court and Court of Appeal authorities to the contrary.

Particulars:

(1) The question of who between two or more persons a political party decides to sponsor to contest an elective office is an internal matter of the political party over which the High Court has no jurisdiction.

(2) A person aggrieved by the decision of a party in (1) above has his remedy in damages and nothing more.

Error in Law

2. The learned trial Judge erred in law when he failed to hold that the claim of the respondents was not maintainable; as the appellant had already entered for the election against a third party and won (the election having come and gone) before the action was filed.

Particulars:

Entertaining the action at that stage would confer no advantage to the respondents – and a Court’s decision in the circumstances would be merely academical or hypothetical.”

The appellant also filed his brief of argument and in the brief identified three issues for determination. They read as follows:-

“(1) Does the High Court of a State in Nigeria have jurisdiction to entertain a claim as to which of two contending candidates a political party ought to sponsor for an election.

(2) Can a State High Court assume jurisdiction in a claim relating to intra party primaries and can the Court compel a political party to sponsor a candidate against its will.

(3) After a candidate has actually been sponsored by a political party and that candidate contests and wins a Local Government Chairmanship election, does the High Court of State possess the jurisdiction to question such election either from the point of view of faulty nomination or otherwise, as opposed to the Local Government Election Tribunal?”

It appears to me that issues (I) and (2) are relatively saying the same thing. There was no reason to split them. The learned counsel for appellant must have found that out for himself because he treated them together in his brief of argument.

It has been said very often by the Court that it is undesirable to proliferate issues in such a way that will result in splitting a ground of appeal. The desirable thing to do is to formulate an issue for determination arising from grounds of appeal and not to exceed the number of grounds of appeal as is done in this case. See Labiyi v. Anretiola (1992) 8 NWLR (pt.258) 139 at 159 where KARIBI-WHYTE, J.S.C., said:-

“This Court has always frowned at and viewed with disfavour the proliferation of issues for determination formulated from grounds of appeal. The principles which govern the formulation of issues for determination is that a number of grounds could where appropriate be formulated into a single issue running through them. It is patently undesirable to split the issue in a ground of appeal.”

Be that as it may, I shall now consider the submissions of learned counsel for appellant as contained in his brief of argument, which he adopted.

Learned counsel started by pointing out that since the trial court struck out prayers 3,4, 5, 6& 7 in the course of the proceedings, the only prayers that remained before the Court were prayers 1 and 2 which I will reproduce again for the purpose of clarity.

1. A declaration that the plaintiff was duly nominated in the 6th November, 1991 chairmanship primaries conducted by the 1st defendant in Ekpe Atai Local Government Area.
2. A declaration that the plaintiff is the rightful candidate to be put forward by the 1st defendant to the 1st defendant’s Ekpe Atai Local Government congress for ratification and to contest the 23rd, November, 1991 chairmanship election in Ekpe Atai on the 1st defendant’s platform.

As has been shown earlier in this judgment as at the date, the prayers were sought, the nomination was over, the election had been held and won.

Then the appellant immediately after the prayers were granted filed two motions praying for (1) to discharge the orders made by the trial court and in the 2nd one to strike out or dismiss the entire suit, both motions were based on ground of jurisdiction, that is, that the trial court lacked the necessary jurisdiction to entertain the matter.

When arguing issues numbers one and two learned counsel submitted that, the dispute arising for determination before the trial court is a dispute relating to a party’s primaries which is an intra-party exercise, therefore a High Court has no jurisdiction to look into the matter. He contended that primaries relate to an internal arrangement by a political party to choose someone to represent it, therefore the party shall choose its candidate and once it does that, the court shall not interfere. He cited and relied on the cases of Patrick Onuoha v. RBK. Okafor (1983) 2SCNLR 244; (1983) 1 F.N.L.R 217, Balonwu v. Chinyelu (1991) 4 NWLR (Pt.183) 30 and Bakam v. Abubakar (1991) 6 NWLR (Pt. 199) 564. He stated that the attention of the learned trial Judge was drawn to these authorities, but the trial judge declined to follow them. He said it was wrong for the trial judge to hide under a cover of the Electoral Act of 1982 to refuse to follow decisions of the Supreme Court and the Court of Appeal, when in fact the same subject matter was the subject of the pronouncements both in the Supreme Court in Onuoha’ s case and the Court of Appeal in Balonwu and Bakam cases (supra).

Learned counsel contended that the trial judge was even more brazenly wrong to express the view that if the provisions of the 1982 Electoral Act was brought to the attention of the Court of Appeal, in the two cases, the decision of the Court of Appeal would have been different.

Learned Counsel maintained that the trial judge had no capacity or power to refuse to follow these authorities even if the decision were erroneous.

I agree with the learned counsel that the doctrine of stare decisis is a well settled principle of judicial policy which is strictly to be adhered to by all lower courts. While a lower court may depart from its own decisions reached per incuriam, a lower court cannot refuse to be bound by decisions of higher courts even if those decisions were reached per incuriam. The implication therefore is that a lower court is bound by the decision of a higher court even when that decision was given erroneously. If therefore a decision is wrongly reached by the Court of Appeal, the Court of Appeal or the Supreme Court is the proper forum where such an error can be corrected and certainly not a High Court. See Emerah & Sons Ltd v. A.G. Plateau State (1990) 4 NWLR (Pt. 147)788.

It may be pertinent to ask at this juncture, what are the issues that arose, for determination in Onuoha’ s case( supra) before the Supreme Court and Balonwu’s case and Bakam’s case (supra) before the Court of Appeal.

In Onuoha’s case, some of the issues that arose for determination were the right of political party to sponsor candidate and justiciability of the issue as well as whether a court has jurisdiction to compel a party to sponsor a particular person.

At page 227, OBASEKI, J.S.C. said:-

“The issue raised in this appeal before us, is, in my opinion, as stated by learned counsel for the respondents, i.e. whether the Court ought to make an order directing the N.P.P. to sponsor the appellant as against the 3rd respondent.

The answer to the question so raised must, in my view, be in the negative. A positive or an affirmative answer will instantly project or propel the court to the area of jurisdiction to run and manage political parties and politicians.

Can the Court decide which of the two candidates can best represent the political interest of the N.P.P? In all honesty I think the court will in doing so be deciding a political question which it is ill fitted to do.”

Further at page 229. The learned Justice said:-

“The law is therefore certain as to who is to resolve the dispute where two candidates claim sponsorship.

The real power to make a choice is in my view, in the political party through its leader.

That being the state of the law, the real question must be whether the matter in dispute now before this Court on appeal is justiciable.

It is clear to me that the expressed intention of the Constitution of the Federal Republic, 1979 and the Electoral Act, 1982 is to give a political party, in the instant appeal, the N.P.P. (Nigerian Peoples Party),the right freely to choose the candidate it will sponsor for election to any elective office or seat in the legislative.

The exercise of this right is the domestic affair of the N.P.P., guided by its Constitution. There are no judicial criteria or yardstick to determine which candidate a political party ought to choose and the judiciary is therefore unable to exercise any judicial power in the matter. It is a matter over which it has no jurisdiction.”

The Court of Appeal followed this decision of the Supreme Court in both Balonwu and Bakam (supra) and arrived at the same conclusion that the domestic affairs of the political party particularly the final decision on primaries should be kept exclusively within the party. As a matter of fact both Balonwu’ s case and Bakam’s case (supra) were decided on the Local Government (Basic Constitutional and Transitional) Provisions Decree No. 15 of 1989.

Now having come this far, I can as well deal with the point raised in issue No.3 under which learned counsel submitted that section 70 of the Local Government (Basic Constitutional and Transitional) Provisions Decree No. 15 of 1989 exclusively reserved the jurisdiction to adjudicate on local government election matter for the Election Tribunals. A High Court can only exercise jurisdiction with regard to appeal coming to it from the decision of the Election Tribunal. That the provision of section 47A(1) of Decree No.38 used by the trial judge to arrogate jurisdiction to himself can not override the provision of 5.70 of Decree No.15 of 1989 which is a very clear provision.

It is my view that the submissions of the learned counsel for appellant on these issues are very sound and on firm ground. I find it hard to imagine how the trial judge brazenly refused to follow the decision of the Supreme Court in Onuoha v. Okafor (1983) 2 SCNLR 244; (1983) 1 FNLR 127, which 1extensively quoted above as well as the decisions of the Court of Appeal in Balonwu v. Chinyelu (1991) 4 NWLR (Pt.183) 30 and Bakam v. Abubakar (1991)6 NWLR (Pt.199) 564 which were decided on the same principle and the same issues as the case before him, that is, this case. He flippantly used the cover of if the Court of Appeal had been given the opportunity of considering the effect of the absence of section 83 of the Electoral Act in Decree No.15 of 1989 and the effect of section 47A(1) & (2) of Decree No.38 of 1990, their lordships could have come to different conclusion.

To say the least, this is highly speculative and it is not his responsibility to speculate what decision the Court of Appeal would have reached.

Both the Supreme Court and the Court of Appeal made a very clear finding on issues in all respects, the same as the issues before the trial judge and that is the law.

He is bound to follow it. Even if the decisions are wrong, the trial judge has no power to derogate and refused to be bound by them.

Talking of s.47A(1) & (2) of Decree No. 38 of 1990 in my view one can regard it at best as an emergency piece of legislation to take care of a peculiar situation.

“47 A(1) No interlocutory or interim order, or ruling, judgment or any other order or decision made by any Court or tribunal before or after the commencement of this Decree, in respect of any intra party or inter-party dispute or any other matter before it shall affect the date, time or the holding of any election or the performance by the commission of any of its functions under this Decree.

(2) Subject to subsection (1) of this section, the Court or tribunal as the case may be, may continue with any proceedings before it and make any decision it may deem fit, but where the Court or tribunal finds that a candidate elected was not duly nominated, the Court or tribunal shall

order a bye-election.”

It was promulgated hurriedly to ensure that all elections are held on the same day and time throughout the country on the day it was scheduled to hold; irrespective of Court injunctions that might have been obtained. Subsection (2) even though inelegantly drafted was specifically provided to ensure that candidates who won election petitions through technicality do not take over the seat from candidate who otherwise won the election by majority of votes. To take care of that situation, the tribunal or Court before which a matter was entered before election tribunals were set up could conclude the matter, but then the only order they can make is an order for bye-election in the event the election is set aside.

It is clear that this section was specifically designed and promulgated to take care of a peculiar situation and it was not intended to give general powers or jurisdiction on the High Courts to dwell in matters that are primarily the responsibility of the political parties as we have seen in Onuoha v. Okafor (supra).

The situation was made even more clearer on the provision of S.70 of Local Government (Basic Constitutional and Transitional Provisions) Decree No.15 of 1989 which says:-

“70(1) There shall be established for each State one or more election tribunals to be known as Local Government Council Election Tribunals which shall, to the exclusion of any Court or tribunal, have original jurisdiction to hear and determine –

(a) petitions as to whether any person has been validly elected as Chairman of a Local Government Councilor as Councillor,”

Then section 75 (1) of the same Decree provides as follows:-

“75 (1) Appeal shall lie to a competent High Court from the decisions of Local Government Council Election Tribunals established under this decree on any grounds specified in section 73 of this Decree or on any question whether any person has been validly elected as Chairman or any other member of a Local Government Councilor whether the seat of any such person has become vacant.”

These are clear provisions, which can not be over ridden by a emergency provision like section 47A of Decree No. 38 of 1990, which was specifically promulgated to take care of a peculiar situation. It was not intended to give general powers to the High Courts. In fact it is an ouster provision strictly.

I am not therefore surprised that the trial Judge himself said, he felt extremely ill at ease to decline jurisdiction in the suit, I will say, he is justified to feel ill at ease, because he has no legal ground to assume jurisdiction in the matter before him.

In the circumstances, it is wrong of the trial Judge to refuse to be bound by the decisions of the Supreme Court and the Court of Appeal. He is also wrong to assume jurisdiction to determine the matter.

In my view the appeal has merit and it is accordingly allowed. The order of the trial judge striking out the two applications filed on 5/12/91 and 6/12/91 is hereby set aside. The respondents who were plaintiffs in the lower Court did not participate in this appeal.

The order of this court is that the plaintiff’s suit filed before the lower Court is hereby struck out.

The appellant is entitled to costs which I assess at N750.00

---

Other Citations: (1993)LCN/0157(CA)